Tuesday, February 8, 2011
It's Not A Winning Ticket
Someone used my picture without permission! What do I win?
Over the last three years, I’ve been involved in the copyright infringement case Latimer v. Roaring Toyz, et al. The case has been reported by various photo-industry publications and blogs since it involved a claim of copyright infringement brought by a photographer against several high-profile defendants. Today, the case, which has all the trappings of a morality play, represents a cautionary tale for any photographer who fails to use written agreements or who doesn’t understand that a photographer’s conduct can create a license (aptly named an implied license). Above all, the case is a lesson in the importance of maintaining realistic expectations in business and litigation.
Every time I recount this tale, I hear the character in the film The War of the Roses, Gavin D’Amato, saying “[w]hen a man who makes $450 an hour wants to tell you something for free, you should listen.”
The Genesis Of The Case
The background of the case is relatively straightforward. In January 2006, Kawasaki Motors Corp. U.S.A. engaged Sarasota, Florida-based Roaring Toyz (www.RoaringToyz.com) to customize two ZX-14 motorcycles as part of its introduction of the new model motorcycle. The customized motorcycles were to be displayed together with standard production models during Daytona Bike Week. Although Roaring Toyz did the custom work, it commissioned Ryan Hathaway, an independent artist, to create custom artwork that ultimately appeared on the motorcycles. By late February 2006, Roaring Toyz had nearly finished the customization of the two motorcycles. At about the same time, Kawasaki was completing preparations for the ZX-14 World Press Introduction, which was scheduled to take place in Las Vegas during the last few days of the month.
Kawasaki requested photographs of the customized motorcycles, and the Roaring Toyz marketing director, using a point-and-shoot digital camera, created and sent the requested photographs. After seeing the marketing director’s photographs, Kawasaki decided that they wanted better quality photographs of the customized motorcycles so that they could include them in the media kit distributed at the World Press Introduction.
While Roaring Toyz had relationships with a number of photographers in the motorcycle industry, it was trying to promote Todd Latimer, a photographer in Safety Harbor, Fla., who was friendly with some of the people at Roaring Toyz (previously, Latimer had worked as a glamour photographer, but a variety of factors prompted him to look for new subject matter; Roaring Toyz used its contacts in the motorcycle industry to help Latimer receive magazine assignments, including an assignment from 2 Wheel Tuner, to cover the customization of the ZX-14 motorcycles). Roaring Toyz called Latimer and requested that he photograph the customized motorcycles so that Kawasaki could include the images in its media kit. Latimer drove to the Roaring Toyz shop for a photo shoot that started late in the evening and went through to the very early hours of the next morning so that images could be sent to Kawasaki the next day, the deadline for the press kit.
After completing the shoot in the very early hours of the morning, Latimer demanded that Roaring Toyz pay him $800, which was paid (Latimer later claimed that the $800 related to something other than the overnight shoot). Later that morning, Latimer e-mailed photographs of the customized motorcycles to the Roaring Toyz marketing director, who forwarded the images to Kawasaki. In a follow-up e-mail, Latimer asked the marketing director to convey to Kawasaki that Latimer also would like a photo credit, if possible. Kawasaki included five of Latimer’s photographs in the media kit together with 110 other images of standard production models.
Some months later, Latimer opened a copy of Cycle World magazine, published by Hachette Filipacchi Media U.S., Inc. (a subsidiary of the world’s largest magazine publisher) and discovered that it included two of his images from the overnight shoot together with an article discussing the new motorcycle. A Cycle World representative received Kawasaki’s media kit at the World Press Introduction. At about the same time, a number of other magazines published articles about the new motorcycles, including 2 Wheel Tuner, which published photographs from the assignment they had given Latimer.
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